Compliance with Federal and State Mandates
After developing a policy statement, a company may wish to offer supervisory
training to those closest to the workforce, including information about drugs and alcohol,
drug paraphernalia, signs and symptoms of usage, and performance deterioration signals.
Training enables supervisors to properly establish reasonable suspicion before referring
employees for testing and aids in the implementation of a drug and alcohol Employers must
be aware of several federal and state rules, regulations, and laws when implementing a
drug and alcohol-free workplace program, particularly when the program includes testing.
Not all laws will be relevant to all employers, but it is important to determine which ones
are relevant to your particular situation.
Some of the more common
mandates that affect employers and the ways in which they conduct
their programs include:
Title VII of the
Civil Rights Act of 1964;
State drug testing
Disabilities Act of 1990;
State Workers Compensation
Workplace Act of 1988;
of Defense regulations;
of Transportation regulations.
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 applies to all private employers with 15 or
more employees and prohibits discrimination against applicants or employees on the
grounds of race, sex, religion or national origin.
Challenges to drug- and
alcohol-free workplace programs under Title VII are not common
or likely, but an employer must be sensitive to the impact of
the program upon groups who are protected under this law. It
is important that a program and its procedures not provide even
the perception, let alone the practice, of treating any employee
differently because of race, sex, religion or national origin.
The program must be consistently enforced with employees.
State Drug Testing Laws
Some states have enacted drug testing statutes. Some of the laws restrict testing,
require specific procedures to be followed, restrict sanctions that can be imposed
on employees who violate policies, and authorize private lawsuits against employers,
laboratories and medical facilities that violate the laws. It is imperative that
employers determine what laws (if any) exist in the states in which they conduct
business and ensure compliance with the laws. The Institute for a Drug-Free Workplace
in Washinton, D. C. publishes a guide to state and federal drug testing laws.
Information can also be obtained from the U.S. Department of Labor in Washington,
D.C., and the federal Center for Substance Abuse Prevention in Rockville, Maryland.
Americans With Disabilities Act of 1990
The Americans With Disabilities Act of 1990 (ADA) is a comprehensive civil
rights bill that applies to all employers with 15 or more employees.
ADA prohibits employers from discriminating in employment decisions against
a qualified individual with a disability... because of his disability.
A qualified individual with a disability does not include any
applicant or employee who is currently abusing drugs or alcohol. The Act
specifically permits employers to adopt drug testing and drug-free workplace policies,
and to prohibit employees from using illegal drugs. However, qualified
individuals may include persons who have successfully completed rehabilitation
programs, or are in a program and are no longer using illegal drugs.
Purported violation of the ADA is one of the most common types of legal challenges
facing employers in administering drug- and alcohol-free workplace programs. It is, therefore,
extremely important that employers fully familiarize themselves with this law, which is
available on the Internet.
State Workers' Compensation Laws
States vary as to the legal impact on Workers Compensation claims when
drug and/or alcohol are determined to be contributing factors. Some states have laws that cause
an injured worker to become ineligible for Workers Compensation benefits when an
employees injury is caused by the willful and serious misconduct of the injured employee
or by his intoxication.
Many states have also enacted laws that provide financial discounts on
Workers Compensation insurance premiums to employers who maintain drug- and alcohol-free
It is important for employers to determine what, if any, Workers Compensation
laws exist in the states in which they conduct business before implementing a drug and
alcohol-free workplace program.
Federal Drug-Free Work Place Act of 1988
The Federal Drug-Free Workplace Act of 1988 became law on March 18, 1989. The
law requires that all federal contractors who receive $100,000 or more, as
well as all federal grant recipients, must comply with its requirements. Drug
testing is not required under this law, but other provisions of a drug-free
workplace are. The following guidelines give the minimum requirements:
Publish a policy statement prohibiting unlawful use, possession,
manufacture, or distribution of controlled substances in the workplace;
Notify employees of said prohibition and the penalty for violating it;
Establish a drug-free awareness program;
Provide employees engaged in a contract with a copy of the policy
Notify employees that compliance with the policy statement is a condition
Require (in writing in your policy)employees to notify the employer
within five days if they are convicted of a criminal drug statute violation
occurring in the workplace; additionally, notify the contracting
agency of such violations, and impose a sanction or require
completion of a drug assistance program by a convicted employee;
Make a good-faith
effort to maintain a drug-free workplace through these provisions.
If you are a federal government contractor or grantee, you may wish to contact
the agency that awarded your contract or grant to determine whether it has additional
U.S. Department of Defense Regulations
The U.S. Department of Defense (DOD) has issued rules and regulations that
obligates defense contractors to establish and maintain a drug-free workplace
program for all personnel who work in sensitive jobs.
General guidelines of
the DOD regulations include:
Contractor, in concert with the contracting agency, is responsible
for determining which jobs are sensitive by analyzing the type of work
performed and the duties of the various jobs and their relationship to security.
is required for individuals in sensitive jobs.
Drug testing is permitted in circumstances such as 1)
reasonable suspicion, 2) post-accident, and 3) as part of rehabilitation and is
required in pre-employment situations.
In unionized settings wherein contract clauses conflict with testing
regulation, drug testing must be discussed in the next round of contract negotiations.
U.S. Department of Transportation Regulations
The U.S. Department of Transportation (DOT) has issued rules and regulations
that require the implementation of drug- and alcohol-free workplaces, including
drug and alcohol testing, by employers in the transportation industry. The rules
and regulations are applicable to employers regulated by one or more of the following
Federal Aviation Administration (FAA);
Federal Highway Administration (FHWA);
Federal Railway Administration (FRA);
United States Coast Guard;
Urban Mass Transportation Administration;
Research and Special Programs Administration (pipelines).
Specific requirements vary from administration to administration, but basic
guidelines under the DOT regulations include:
Circumstances under which testing is required:
post accident; and
return-to-duty and follow up.
DOT has established strict testing procedures that must be followed.
All drug testing must be conducted in laboratories certified by the U.S. Department of
Health and Human Services.
All positive drug tests must be reviewed by a Medical Review Officer (MRO),
and employees must be afforded an opportunity to consult with the MRO prior to the test result
being reported to the employer.
Five classes (and only these five classes) of drugs must be
Cut-off levels established by DOT must be used in drug testing.
Alcohol testing of employees must be conducted using only devices
and equipment approved by DOT and in accordance with procedures established
by DOT. Alcohol testing of applicants is not required.
Depending on the agency, employees must receive drug awareness training,
including information about the companys drug- and alcohol-free workplace program.
Employees must also be provided awareness information about alcohol misuse.
All supervisors must receive a minimum of 60 minutes of training in drug
abuse detection, documentation and intervention, and an additional 60 minutes of similar
training about alcohol abuse.
Employees determined to have drug and/or alcohol abuse problems must
be referred by the employer to a Substance Abuse Professional (SAP) for evaluation. Before the
abusing employee can be returned to duty, a recommendation of return to duty must
be made by the SAP.
Employers who are subject to any of these mandates would be prudent to thoroughly
research the specifics of the relevant mandates to ensure that they develop a comprehensive
drug and alcohol-free workplace program that adheres precisely to the requirements.